In re Jorge M.











Filed 2/10/12 In re Jorge M. CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH
APPELLATE DISTRICT




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IN RE JORGE M., a Person Coming Under the Juvenile Court Law.	H036710 (Santa Cruz County Super. Ct. No. J22005)
THE PEOPLE, Plaintiff and Respondent, v. JORGE M., Defendant and Appellant.

The minor,
Jorge M., admitted aiding and abetting the murder of Jose Barajas for the
benefit of or in association with a criminal
street gang (Penal Code, §§ 187, 186.22, subd. (b)(1)),href="#_ftn1" name="_ftnref1" title="">[1]
and actively participating in a criminal street gang (§ 186.22, subd.
(a)). Based on the prosecutor’s
description of the factual basis for the minor’s admissions, the juvenile court
found that the murder was in the first degree.
The court committed the minor to a ranch camp until the requirements of
the program have been satisfactorily completed.

On appeal,
the minor contends that there is insufficient
evidence to support the juvenile court’s finding that a first degree murder
was a natural and probable consequence of the assault committed by several of
the minor’s fellow gang members on Barajas.
We disagree, and will affirm the juvenile court’s commitment order.

>BACKGROUND

On August
3, 2009, a Welfare and Institutions Code section 602 petition was filed
charging the minor, then age 14, with the murder of Jose Barajas for the
benefit of and in association with a criminal street gang (§§ 187, subd. (a),
186.22, subd. (b)(1); count 1), and with actively participating in a criminal
street gang (§ 186.22, subd. (a); count 2).
On December 6, 2010,
the minor entered into a negotiated disposition wherein he admitted the
allegations in count 1 “as an aider and abettor,” as well as the allegations in
count 2, with the understanding that he would not be committed to the
Department of Juvenile Justice (DJJ).
The prosecutor recited the factual basis for the admission of the
allegations in count 1 as follows.href="#_ftn2"
name="_ftnref2" title="">[2]

“[O]n April
29th of last year at approximately 7:14 p.m.[,]
Jose Barajas called 911 for the second time that day. He had earlier been robbed of his bicycle and
reported that to 911. He reported to the
Watsonville Police Department that a person by the name of Diablo, who is
Manual Mesa, a member of Loco Park Watsonville, and four to five other members
of Loco Park Watsonville had committed the robbery.

“Thereafter
at 7:14 he called 911 again from his
cell phone and he told the dispatcher that the Loco Parkers were at his home
harassing him again. There was an
extraordinarily too long colloquy between himself and the dispatcher about his
ability to provide a street address where he lived on the river. The line then goes dead. Immediately beforehand you can hear grunting
sounds and what appeared to be thumping sounds.

“Mr.
Barajas is seen emerging from the tree line, his home being behind the tree line
on the Watsonville levee. He runs out of the tree line. He’s chased by approximately ten – somewhere
between eight and ten members of Loco
Park, all of whom, according to
witnesses, were armed with sticks, one of whom was armed with a visible
knife. Thereafter Mr. Barajas was
murdered[. A]ccording to Dr. Mason, the
coroner in this county, Mr. Barajas was hit at least at an absolute minimum a
number of times, four times in the head with a stick or pipe, and at least two
of those strikes were with the end of the pipe in his head.

“In
addition, he was struck no fewer than three times by a pipe or a stick on his
upper torso and bruises documenting those injuries are visible. So Dr. Mason also opines that he was struck
at least three times and perhaps more times on his body.

“The causes
of death to Mr. Barajas were his carotid artery being cut when he was stabbed
one of three times, once in the neck, and in addition blunt force trauma to his
head.”

“[The
minor] was seen in between the times of the robbery and the murder in the park
with other associates of Loco Park
in that approximately hour-and-a-half before the murder was committed.

“Following
the murder there was a three-month long investigation. At the culmination of that investigation ten
people were arrested, one of whom was [the minor].

“On the
date that he was arrested his house was searched. There were in excess of 30 photographs on his
computer that are gang related; gang members throwing signs, actually members
of Loco Park who were down by the encampment that Loco Park had on the
Watsonville levee. And thereafter he was
interviewed by two District Attorney inspectors, Henry Montes and Robert
Montes. During that interview he
admitted that Loco Park member by the name of Ivan Vaca, who goes by Bandit,
told himself and Rodrigo Garcia to post up while members of Loco Park committed
a jale, which is j-a-l-e, and literally translates to job, but in the local
vernacular is committing a violent act.

“He said
that he did not watch the murder, although I don’t believe that was a credible
portion of his interview, and admitted that when he saw police he called Ivan
Vaca on his cell phone and told him that the placa, p-l-a-c-a, police were
there and at that point all the members who had been assaulting Jose Barajas
fled.”

“With
regard to the People’s theory of liability, it is aider and abettor liability,
which in common language translates to if you know somebody is committing a
felony and you help them you are just as guilty as the people who actually
committed the felony; in this case murder.”

Following
the recitation of the factual bases for the pleas, the court found beyond a
reasonable doubt that the minor committed the offenses as alleged in the
petition. The court then gave the
parties the opportunity to brief the issue of whether the court should find the
murder to be in the first or second degree based on the facts the prosecutor
had recited. “So I’m giving you an
opportunity to present some research, and I’ll reserve my final ruling until I
have an opportunity to look at that.”

The minor
filed a brief on December 20, 2010, arguing that, because of the absence of any
language in the petition indicating that the murder was committed in one of the
manners specified in section 189, as well as the absence in the prosecutor’s
factual basis for the admission establishing beyond a reasonable doubt one of
those specified manners, the court should find the murder to be in the second
degree. On January 14, 2011, the
prosecutor filed a brief arguing, based on discussions not placed on the
record, that the terms of the plea agreement was that the minor was admitting a
first degree murder with the understanding that the court would not commit him
to DJJ. On January 21, 2011, the date
set for the disposition hearing, the court filed a copy of a brief which the
prosecutor had emailed to the judge on December 17, 2010, but which the judge
had not yet read. In the brief, the
prosecutor argued that the factual basis for the plea recited on the record
established a prima facie showing of first degree murder. The minor’s responsive brief contended that
the facts of the case were insufficient for a finding beyond a reasonable doubt
that the murder was deliberate and premeditated. The court continued the matter to January 24,
2011.

On January
24, 2011, after the parties submitted the matter, the court stated that the
plea agreement did not require the minor to admit a first degree murder; the
off-the-record discussions had centered on the fact that the prosecutor would
not agree to amend the petition to allow the minor to plead to a lesser
charge. The court then ruled as
follows: “[T]he theory of the case which
has been consistent throughout the last 17 months and discussions with Counsel,
is that of an aider and abettor.

“Under
Penal Code Section 31 an aider and abettor is responsible for all the conduct
of the direct actors. In this case we do
have [the minor] that is involved in a street criminal gang conduct activity,
and in the factual statement there was an outline of his posting up while gang
members committed a jale which meant a violent attack on another person. And while I believe that [the minor] is very
much a follower and not a master mind of the criminal conduct, which was
committed on Mr. Barajas, he, however, under a criminal theory of an aider and
abettor is legally responsible for all of the criminal conduct of his
co-actors.

“The
co-actors in this case were, in fact, older juveniles, some juveniles his same
age, obviously more sophisticated, obviously more violent in their nature, and
adults who have been involved with the gang for a very long time. The co-actors utilized weapons of various
sorts, including pipes, knife, sticks or pieces of wood. They pursued Mr. Barajas in that they chased
him to the point of where they attacked him and did brutally inflict multiple
and deadly injuries upon him. The
co-actors did conduct themselves in a willful, deliberate and premeditated
manner, and committed a malicious first degree murder on Mr. Barajas.

“[The
minor] is a follower. He was not an
attacker of Mr. Barajas, but he did facilitate the conduct of these adult and
more sophisticated gang members in that he posted up so that he would be the
lookout on alert when police were to show up, or if anyone were to show up that
might frustrate their attempt or conduct as committed on Mr. Barajas, or if
they were to be detected by anybody that could report who was responsible for
the actions done to Mr. Barajas.

“Therefore,
based on the aider and abettor theory the Court can make no other conclusion
but set the degree of the murder as a first degree inasmuch as the co-actors
clearly did have according to the CALCRIM and discussion in >In [r]e C. R. [(2008) 168 Cal.App.4th
1387,] had an opportunity to reflect to show that it was premeditated and
deliberate, there was evidence of the planning activity by gang members, there
was evidence of motive inasmuch as there had been a prior ongoing relationship
with Mr. Barajas which was not a good one.
Also, the evidence that the matter of committing the crime in that they
actually armed themselves with deadly weapons suggested a preconceived plan
against Mr. Barajas.”

The court
set the maximum time of confinement as “life plus 10 years,” including a
concurrent determinate term of three years.
It committed the minor to a “ranch camp . . . and he
would remain in the program until the requirements of the program have been
satisfactorily completed. Not knowing
which program yet would be recommended by probation, I don’t know what the
length of stay would be.” The minor was
placed at “Bar-O-Boys Ranch” on February 8, 2011.

>DISCUSSION

The minor
contends that there is not substantial evidence to support the juvenile court’s
finding that he aided and abetted a first degree murder. The minor argues that he “was not told the
specifics of the ‘jale’ by Bandit and could not see the assault or murder. A reasonable person in his position would
have known that, in the heat of passion, an assault could turn into a murder,
or that the gang members, acting with implied malice, could kill Barajas. However, without knowledge of any preplanned
activity by the co-actors, he objectively could not have known that a first
degree murder was a possible outcome of the assault.” The minor asks this court to reverse the
juvenile court’s order and remand the matter to that court with directions to
reduce the offense to second degree murder.

The
Attorney General contends that there is sufficient evidence to support the
finding that first degree murder was a natural and probable consequence of the
assault on Barajas. “[T]he court
properly recognized that [the minor] was involved in a street criminal gang
activity, that the gang had motive to kill Barajas and armed themselves
accordingly, and that their activity was premeditated and deliberate.”

Section
1192 provides that, “[u]pon a plea of guilty, or upon conviction by the court
without a jury, of a crime or attempted crime distinguished or divided into
degrees, the court must, before passing sentence, determine the degree.” In a juvenile court matter, the court must
find “the degree of the offense and whether it would be a misdemeanor or a
felony had the offense been committed by an adult.” (Cal. Rules of Court, rule 5.780(e)(5).) “These determinations may be deferred until
the disposition hearing.” (>Ibid.)

“Murder may
be of the first or second degree. While
both require malice aforethought, first degree murder requires willful,
deliberate premeditation. (Pen. Code, §§
187, 189.)” (In re C.R., supra, 168
Cal.App.4th at p. 1393.)

In
evaluating defendant’s contention that there is insufficient evidence to
support the juvenile court’s finding that the murder in this case was in the
first degree, “we apply the substantial evidence rule and view the evidence and
all its attendant inferences in the light most favorable to the judgment.” (In re
C.R., supra, 168 Cal.App.4th at
p. 1393.) “We must presume in support
of the judgment the existence of every fact that the trier of fact could reasonably
deduce from the evidence.
[Citation.] ‘The focus of the
substantial evidence test is on the whole
record of evidence presented to the trier of fact, rather than on “ ‘isolated
bits of evidence.’ ” [Citation.]’ [Citation.]”
(People v. Medina (2009) 46
Cal.4th 913, 919 (Medina).)

“It is
important to bear in mind that an aider and abettor’s liability for criminal
conduct is of two kinds. First, an aider
and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable
consequences doctrine, an aider and abettor is guilty not only of the intended
crime, but also ‘for any other offense that was a “natural and probable
consequence” of the crime aided and abetted.’
[Citation.] Thus, for example, if
a person aids and abets only an intended assault, but a murder results, that
person may be guilty of that murder, even if unintended, if it is a natural and
probable consequence of the intended assault.”
(People v. McCoy (2001) 25
Cal.4th 1111, 1117; see also CALCRIM No. 403.)
“To trigger application of the ‘natural and probable consequences’
doctrine, there must be a close connection between the target crime aided and
abetted and the offense actually committed.”
(People v. Prettyman (1996) 14
Cal.4th 248, 269.)

“The . . .
question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged
objectively, it was reasonably
foreseeable.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1133; >Medina, supra, 46 Cal.4th at p. 920.) “Thus, ‘ “[a] natural and
probable consequence is a foreseeable consequence” . . . .’ [Citation.]
But ‘to be reasonably foreseeable “[t]he consequence need not have been a
strong probability; a possible consequence which might reasonably have been
contemplated is enough. . . .”
[Citation.]’ [Citation.] A reasonably foreseeable consequence is to be
evaluated under all the factual circumstances of the individual case [citation]
and is a factual issue to be resolved by the [trier of fact]. [Citations.]”
(Medina, supra, at p. 920.)

In
examining the record in the light most favorable to the prosecution, we
conclude that the juvenile court properly found that the murder of Barajas was
a reasonably foreseeable consequence of the premeditated and deliberate gang
assault in this case. After Barajas
called 911 and reported that members of the Loco Park Watsonville gang had
stolen his bicycle, the minor was seen with various members of that gang. The minor admitted that he was told by a gang
member that he was to act as a lookout (“post up”) while other members of the
gang committed a violent act (“jale”).
Then eight to 10 gang members armed themselves with sticks, pipes, and
at least one knife before going back to Barajas’s home site on the levee. There, while the minor acted as a lookout,
the other gang members found and chased Barajas and hit him at least four times
in the head with the sticks and pipes, and at least three times on his upper
torso. They was also stabbed him three
times, once in the neck. When the minor
saw the police, he reported it to one of the gang members who was attacking
Barajas, and all the gang members, including the minor, fled. Barajas died as a result of the multiple hits
to his head and the stab wound in his neck.

Fatal blows
to the head with the sticks and pipes and/or a fatal stabbing of Barajas with a
knife during the gang assault on Barajas was a natural and probable consequence
of the assault. (See e.g., >Medina, supra, 46 Cal.4th at pp. 922-923; People v. Montano (1979) 96 Cal.App.3d 221, 227.) In addition, the gang assault on Barajas was
willful, deliberate and premeditated; the minor knew that the gang assault was
premeditated and deliberate; and the minor agreed to and did aid and abet the
commission of the premeditated and deliberate gang assault by acting as a
lookout. Therefore, under all of the
circumstances presented, a reasonable person in the minor’s position would have
or should have known that the death of Barajas was a reasonably foreseeable
consequence of the premeditated and deliberate gang assault he aided and
abetted. (Medina, supra, 46 Cal.4th
at p. 927.)

Accordingly,
viewing the record in the light most favorable to the prosecution, we find that
there was sufficient evidence to support the finding by the juvenile court that
the murder of Barajas was in the first degree.
(In re C.R., >supra, 168 Cal.App.4th at p. 1393.)

>DISPOSITION

The
dispositional order of January 24, 2011, is affirmed.





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Bamattre-Manoukian, J.











WE CONCUR:









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PREMO, ACTING P.J.

















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ELIA, J.